Richard Epstein: “The Myth of a Pro-Business SCOTUS”

Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.


  • Wow.

    The ex ante and ex post argument is ridiculous. The thesis is that the Court’s decisions promoted social welfare more than decisions the other way would have. Perhaps. But isn’t this kind of reasoning a bit fascist? Putting the welfare of society over the good over the individual was ostensibly Mussolini’s world view. Or maybe it is more of a communist view (but I do not think so). In any case, it simply is a view that is alien to me and should be abhorrent to libertarians and to Mr. Epstein.

    i would much rather have a court decide a case because it is pro-business than because it believes that the decision benefits the “common good.”

  • And I say “Wow” to Allan’s comment.

    I did not understand Professor Epstein as putting group benefits above individual rights. His scorn seems properly to be against class actions. By definition, class actions pit one group against another. Corporations by themselves do not print money. Funds come from customers and stockholders. The false construction of abstract deep pockets showed in the priest scandal. The resulting parishioner tax to line the pockets of greedy attorneys and opportunistic families boiled my blood. And I am a devote atheist!

  • The last paragraph of the article: ” The question is which decision from the ex ante perspective advances overall social welfare—and by that standard the vocal critics of the current conservative majority come off second best.”

    This is basically a fascist view: the good of the society as a whole takes precedence over the good of the individual.

    I do not disagree with the fundamental concept of legal economics. The problem is that it takes moral issues and turns them into economic ones. For example, calculating the cost of one death against the cost of preventing that death.

    I do agree with Prof. E. that class actions do not work properly. In a class actions the question is usually how much a company has to pay the class attorneys. The class usually gets the short end of the stick.

    So, we are left with two options: offenders get to keep ill-gotten gains or the ill-gotten gains are transferred to the lawyers. The better option, and the only defensible one, is that offenders are stripped of ill-gotten gains and the gains are returned to those who lost them.

    Perhaps we should have a system where the government does the litigation and the ill-gotten gains go to the public fisc.

    By the way, in the Catholic church priest scandal also boiled my blood, in that, without greedy attorneys and opportunistic families, the priests would have gotten away with egregioius crimes, and the church would have gotten away with hiding those crimes. I, too, am not a Catholic.

  • There are plenty of things that can be said against a “greatest good of the greatest number” premise, but this is the first time I have ever heard it called “basically a fascist view.” Previously I had imagined that all sorts of political thinkers — including species of liberals, conservatives, progressive, agrarians, social democrats, and so forth, as well as some libertarians — sometimes advance arguments based on utilitarian reasoning about social welfare. Per Allan, they’re all being basically fascist when they do so. Amazing.

  • If I remember my history, fascism according to Mussulini was symbolized by a bundle of sticks tied together. The individual sticks (people) alone were weak, but together they were strong. Thus, the good over the entire bundle took precedence over the good of the individual.

    What Prof. E is asking us to do is put the good of society over the good to the individual.

    Of course people sometimes take a utilitarian view. I don’t see how that is much difference from the fascist theory. Ask Jonah Goldberg, who sees everything liberals stand for as fascist.

    Regardless of the political views, I think Prof. E is wrong. Somehow, we should have a system that disgorges wrongdoers of ill-gotten gains. If Mr. Olson can come up with a system that accomplishes this goal without enriching “greedy” lawyers and “opportunistic” plaintiffs, lets have it.

    Personally, I would rather the ill-gotten gains go to lawyers than be kept by the wrongdoers. But that is just me.

  • […] falsehoods and misconceptions about malpractice law that wouldn’t pass a 1L Torts class. Via Walter Olson, I see he’s back with a piece titled, “The Myth of a Pro-Business SCOTUS,” claiming […]

  • “Personally, I would rather the ill-gotten gains go to lawyers than be kept by the wrongdoers. But that is just me.”

    Yes, it is just you, Allan.

    Also your concept of the “ill gotten gains” doesn’t apply to the cases Ted Frank takes on. It’s only the class action lawyers who derive “ill gotten gains”.

  • Bah.

    I don’t know how one could make a broad statement about Mr. Frank’s cases without having reviewed every one.

    I believe, however, he would disagree with you. His position is likely that, generally, class action settlements should benefit consumers and he opposes those settlements that benefit lawyers greatly and consumers marginally.

    If one were to ask Mr. Frank whether “ill-gotten gains” should be disgorged and returned to wronged consumers, my guess that his answer would be an unequivocal “yes.”